In a Adam Liptak NY Times article (via ABAJ) about a forthcoming University of Chicago Law Review paper, Duke Law Professor Marin Levy complains about the increasing use of the "opening the floodgates of litigation" metaphor in Supreme Court decisions. "Barring a true flood of tens or hundreds of thousands of cases," she wrote, "no evident principle exists to support the court taking workload concerns into account when engaging in interpretation of the law."

But that's not even remotely true. For example, imagine a court faced with an interpretative choice of applying a bright-line rule that creates certainty (but reduces some accuracy in close cases) or permitting a broad range of judicial discretion with a multi-factor balancing test. The longtime debate between rules and standards is surely informed by the inquiry whether the multifactor balancing test creates so much unpredictability that it "opens the floodgates of litigation" over that uncertainty, and thus social costs that far exceed any benefits from resolution of unfairness in the marginal case.

And, as Levy herself notes, the floodgates argument is often phrased in terms of whether a proposed interpretation creates incentives for meritless litigation. But what she doesn't discuss is some of the social costs of such litigation (her analysis focusing on habeas), which is, again, a perfectly evident principle for expressing concern about a potential decision. If a procedural interpretation creates profitable incentives for meritless litigation by making it easier for a plaintiff to impose litigation expense on a defendant and thus leverage to extract rents even when a case is without inherent factual or legal merit, a court can and should be concerned that that interpretation opens "floodgates" for such socially wasteful rent-seeking.

Levy's search focuses purely on the word "floodgates," rather than on the nature of floodgates arguments that don't use the word floodgates. So, for example, Dura Pharmaceuticals goes unmentioned in the article, though the Court's concern about a plaintiff's "tak[ing] up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value" was a substantive part of the majority's reasoning in that case. Yet Levy makes broad generalizations about floodgates arguments affecting substantive law without addressing these concerns. And the Liptak article also misses this.

Levy thanks dozens of very smart law professors in the front of her paper. Is it really the case that the academy is so divorced from litigation realities and has such an institutional bias to litigation-as-solution that not one of them raised this basic objection to her argument?

Update: Professor Levy responds in the comments, and corrects the sentence I've crossed out above. I apologize for the misunderstanding about methodology, and should have delved more deeply into the footnotes rather than relying on the necessarily abbreviated description in the newspaper. But I disagree with Levy's claim "I never suggest that concerns about litigation (or the greater social costs of litigation) are not hugely important." The line "no evident principle exists to support the court taking workload concerns into account when engaging in interpretation of the law" certainly suggests that concerns about the greater social costs of litigation are not a principle that "support the court taking workload concerns into account when engaging in interpretation of the law." Certainly, that's the takeaway message that was emphasized in the New York Times.

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7 Comments

Thanks so much for your interest in the article. A few quick points of clarification, though. You say that my search focuses "purely on the word 'floodates'" - that's actually not the case. I have a long note in my article (footnote 28) that explains all of the various search terms I employed. I then note, "To be clear, I do not purport that any case that mentions case volume as a concern is captured in this set; for example, Merrell Dow Pharmaceuticals Inc v Thompson, 478 US 804 (1986) could have been included in the analysis but was not captured by my search. Rather, the claim is simply that I have captured a sizeable number of cases that include this kind of reasoning, including most if not all explicit floodgates cases."

Additionally, I never suggest that concerns about litigation (or the the greater social costs of litigation) are not hugely important. Indeed, I've raised these very concerns in other work I've written. The question, though, is how should we address those concerns - my point is simply that when deciding, say, whether a particular statute violates the constitution, those concerns shouldn't come into play.

Again, I greatly appreciate your interest in the piece - in the future, however, you might want to be sure that your own description of scholarship is not "so divorced" from what it actually says.

If we go back and read tort cases from about 1850 on, both in England and the US, the phrases, "opening the floodgates of litigation" or "avoiding opening the floodgates of litigation" seem to appear with great frequency. Or so I recall. I haven't looked at it recently, though.

Courts have always worried about "opening the floodgates of litigation." One area is that of suing when a woman has experienced a miscarriage. There has been a plethora of cases since time immemorial. In some of these, a mention of "floodgates" was made. In all of them, there is an inference that the courts can't possibly deal with the large number of women who miscarry. Some relevant case law can be found in Jacob Stein, "Damages and Recovery," 1972 ed. Impact Rule p. 82 et seq. Prosser and Keaton "Torts", and 84 ALR 3d 411 et seq. In the Missouri Supreme Court case of Rambo v. Lawson, 1990, the ACLU law professor at Missouri Kansas City School of Law is quoted in the Lawrence Journal World, May 2, 1990 saying that allowing actions for miscarriage of pregnancy "will open a floodgate of litigation." Of course then the concern was encroachment of abortion rights. So even the left has used the catchphrase when it serves their purposes. The Rambo case was discussed in Bolin v. Wingert, a 2002 Indiana Supreme Court case.

So depending on the line of cases we may choose, "avoiding the floodgates of litigation" has always been an issue with the courts. Granted, none of these were SCOTUS cases. But the catchphrase has a long honored history in US courts.

Answer: Anyone and anything who could be said to be the proximate cause of the miscarriage: runaway horses, backfiring cars, holes in the pavement, slip and fall, threats of battery, actual battery, emotional trauma, motor vehicle accidents, frightning images, etc. etc. Don't believe me? Go back and look at the case law starting at about 1884.

Okay, this is just wrong. The question is whether it is more likely than not - by medical testimony - that the miscarriage occurred as the result of negligence. There is no "miscarriage" law in Maryland and I can't remember a single miscarriage lawsuit.

Comment: It isn't wrong. Although I'm not clear what you are talking about.

"The question is whether it is more likely than not - by medical testimony - that the miscarriage occurred as the result of negligence."

Comment: That would seem to be the US Common Law Standard.

"There is no "miscarriage" law in Maryland and I can't remember a single miscarriage lawsuit."

Comment: There is no law because the courts have always rejected hearing these cases. And since the pro-abortion forces have a vested interest, there likely won't be any laws. We are not relying on your memory. We are relying on case law, which you should go back and read.

"This is just crazy talk."

Comment: Not really.

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